Citation Nr: 1305095 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 07-05 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. (A separate Board determination addresses higher initial ratings claims for left shoulder arthritis and lumbar spine arthritis.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from May 1970 to November 1982, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 decision of the Nashville, Tennessee, Regional Office (RO). In November 2008, the Veteran testified at a hearing before the one of the undersigned Veterans Law Judge (VLJ) with respect to applications to reopen service connection claims for right and left knee disabilities, and the nature and severity service-connected left shoulder and lumbar spine conditions. In January 2009, the Board reopened and remanded the service connection claims for right and left knee disabilities, and referred the left shoulder and lumbar spine claims. Prior to being returned for appellate review, the undersigned Acting VLJ held a June 2011 hearing pertaining to the left shoulder and lumbar spine rating claims. In October 2012, the Board notified the Veteran of his right to provide testimony before a third VLJ because he provided testimony at his November 2008 and January 2009 Board hearing concerning his the left shoulder and lumbar spine claims, as well as of the time period that VA must receive notification of his desire to provide such testimony. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The provided time period has expired and to date the Board has not received any response or other communication from the Veteran or his representative seeking to provide additional testimony. Accordingly, remand of the appeal is not necessary and the Board may properly proceed with the panel evaluation of the appeal. The Acting VLJ did not hear testimony regarding the right and left knee service connection claims and only the undersigned VLJ is required to participate in the adjudication of this appeal. FINDINGS OF FACT 1. The competent evidence of record indicates that degenerative joint disease of the right knee is of service origin. 2. The competent evidence of record indicates that degenerative joint disease of the left knee is of service origin. CONCLUSIONS OF LAW 1. Service connection for degenerative joint disease of the right knee is warranted. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Service connection for degenerative joint disease of the left knee is warranted. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to assist and notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Principles of service connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Facts In February 1978, the Veteran was treated for diagnosed right lower extremity muscle strain and, in June 1982, he was treated for left knee symptoms and provided a diagnosis of look knee and knee strain. A September 2005 statement from private physician W. Beazley, M.D., coveys a review of relevant private treatment records but also the VA treatment records, including a VA records dated in 2001 that reveal arthritic changes. Dr. Beazley also reports the findings of a current examination and the increasingly aggressive treatment required to manage the bilateral knee condition. This statement also details the Veteran's account of bilateral knee in-service symptoms and the progressively severe nature of the symptoms since separation. Ultimately, Dr. Beazly relates the currently diagnosed right and left knee conditions to the Veteran's military service, specifically citing the in-service onset and continuous nature of relevant symptoms. During a March 2009 VA examination, the Veteran reported his account of bilateral knee symptomatology, including since separation. The examiner then detailed the in- and post-service treatment of the Veteran's knee conditions and current examination findings. At this time, the examiner diagnosed degenerative joint disease of the right and left knee and stated that the condition was not likely related to military service. In providing this assessment, the examiner states: The [V]eteran and others have made statements that the [Veteran's] knees have hurt since his military service, but there is no record of what may have caused or contributed to his bil[ateral] knee pain, expect [VA] notes...that the [Veteran] states that he climbed ladders every day related to his employment and that activity worsened his bil[ateral] knee pain. The examiner then highlights evidence that only a soft tissue left knee injury was noted in-service and there was no evidence of any in-service trauma or knee abnormality for many years after service. Merits As an initial matter, the Veteran provides a competent, credible and highly probative account of right and left knee symptomatology, including pain, in-service onset and continuity since separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has continually provided an account of relevant symptomalogy, in-service and since separation, with little if any variation, including solely for the purpose of seeking and obtaining medical care. Additionally, the objective medical evidence of record tends to corroborate her account. Taken together, these factors provide competent, credible and highly probative evidence in favor of the claim. See Buchanan, supra.; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to). In any service connection claim, competent and credible medical evidence and opinions are highly probative in establishing the claim. In the present circumstance, the Board finds the most probative medical evidence to weigh in favor of the Veteran's claims. Particularly, the September 2005 statement of private physician W. Beazley, M.D., which provides a clear medical statement that the diagnosed right and left knee conditions likely had their onset in service and that the Veteran's reported account of post-service symptomatology is consistent with the current diagnosis. Dr. Beazley's opinion reflects reliance on relevant medical expertise, a detailed consideration of the relevant medical evidence and the Veteran's competent and credible account of symptomatology, rendering the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Conversely, to the extent the March 2009 VA examination opinion purports to address the service connection claims for right and left knee disabilities, the Board finds the opinion inadequate. The examiner did not adequately address the Veteran's competent, credible and highly probative account of bilateral knee symptomatology, including continuously since separation. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan. Upon reviewing the March 2009 examination report and opinion, the reasoning provided by the examiner to support the provided proposition is largely, if not entirely, based on the absence of corroborating medical evidence, without considering or addressing competent evidence of continuity of symptomatology. Id.; see also Savage v. Gober, 10 Vet. App. 488, 496 (1997) (emphasizing that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"). Given, the foregoing, the Board finds the March 2009 VA examination opinion to at best be based on an incomplete factual analysis, making the opinion inadequate, and of no probative value. See Nieves-Rodriguez v. Peake; see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The criteria to establish service connection for a right knee disability, diagnosed as degenerative joint disease of the right knee, and a left knee disability, diagnosed as degenerative joint disease of the left knee, have been met and the claims are granted. ORDER Service connection for degenerative joint disease of the right knee is granted. Service connection for degenerative joint disease of the left knee is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs